Volume 28, 2024

Corina Heri

As rights-based climate litigation proliferates in domestic and international jurisdictions, landmark cases are creating argumentative patterns that can have far-reaching effects. One recent example is the KlimaSeniorinnen judgment from the European Court of Human Rights, which is already inspiring litigants, litigators and civil society actors mere months after it was issued. Given the relative novelty of climate litigation, and especially of cases based on human rights, the actors involved are particularly eager to learn from each other. This includes judicial responses, which are showing high levels of judicial dialogue and legal transplantation. However, judicial dialogue requires a contextualised and realistic understanding of the underlying leading cases. KlimaSeniorinnen, this article posits, is a valuable starting point for further engagement with the climate-related impacts of human rights, but it does not exhaust the full range of rights, vulnerabilities and obligations involved. This does not mean that the ruling cannot be a valuable roadmap for other decision-makers. In other words, the judgment must be understood as a floor, and not a ceiling, for further engagement.

Katalin Sulyok

Climate science appears to be an essential ingredient in every climate judgment. However, the exact ways in which climate science could (or should) be integrated into the judicial inquiry are far from being straightforward or uncontested. Climate models and scientific calculations feed a wealth of information for judges, which is manifestly relevant to appraising the factual aspects of the dispute at hand; however, they do not automatically answer the legal questions put before the courts. Furthermore, courts may reconstruct the scientific complexities of climate change for the purposes of their legal inquiry in various ways, depending on the legal context, underlying law, and not infrequently, on their preference and strategic purposes. Sometimes, the legal issue is therefore tackled by courts through solely using legal argumentation, and judicial findings are justified without engaging with the merits of scientific evidence. In such cases, courts speak in the language of law instead of basing their findings on scientific rationality. This article argues that, even though crafting such a purely legalistic assessment may be legitimate in certain circumstances, there are hard limits to which courts may sideline climate science in climate change litigation judgments. This article argues that domestic and international courts should approach climate science in their inquiry in a way that does not undermine scientific realities. Finally, this article explores the ways in which judicial reasoning can respect this imperative.

Caroline Foster

The Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement) was adopted in June 2023 as an implementing agreement to the United Nations Convention on the Law of the Sea of 1982 (UNCLOS). The BBNJ Agreement has particular design characteristics. The Agreement involves relatively light substantive obligations complemented by relatively heavy procedural obligations aimed at ensuring the Parties’ transparency of action in relation to its various mechanisms for conservation and sustainable use of marine biological diversity and related matters. It is these reporting and information-sharing procedural obligations which are intended to enable the Agreement’s overall aims to be met. This means that the Agreement’s compliance and accountability mechanisms as they are applied to such procedural obligations will be particularly important. The Parties will want to keep this in mind as they elaborate further the role of the Agreement’s Implementation and Compliance Committee and the operating procedures for the BBNJ Agreement’s Clearing-House Mechanism.

Alicia Khan

As it currently stands, the application of a global constitution such as the Earth Charter could provide the framework for necessary ecological protections, particularly as the effects of catastrophic climate change are increasingly felt on a global scale. The Earth Charter is doubly attractive as it also speaks to elements of social equity and justice that would subsequently further ecological longevity. One form of social equity that aligns well with the Earth Charter is reparations for the effects of colonisation such as the occupation of Indigenous land. Up until now, discourses in ecological justice and reparations have run parallel to each other, but this article explores how the two concepts are complementary to one another and should be presented as such. Both the Earth Charter and reparations have been acknowledged by the United Nations, however both lack legitimacy in “soft” and “hard” law, which ultimately leads to their dismissal in favour of other economically or politically driven events such as proxy wars or cost-of-living crises. With a resurgence of reparations discourse, and an increased urgency for ecological protections through a global constitution like the Earth Charter, the time is apt for legitimising both concepts, presenting each as a way to achieve the other, thus potentially increasing the efficacy of both causes.

William Heywood

Waahi tapu are particularly sacred or important places for Māori. In te ao Māori (the Māori world), waahi tapu are more than just a geographical location; their importance extends into intangible and spiritual values. Because of their unique nature, protecting waahi tapu presents a significant challenge — waahi tapu cannot be moved, their significance is often imperceptible to those unaware they exist, and their locations are often secret. Protecting the many waahi tapu located in the coastal environment from coastal hazards is even more challenging. In the context of climate change, coastal hazards present an increasing  threat to coastal waahi tapu, which requires immediate attention. The primary source of waahi tapu protection is in the New Zealand Coastal Policy Statement 2010 (NZCPS), which is promulgated under the Resource Management Act 1991. The NZCPS places significant emphasis on avoiding coastal hazards. This allows for coastal hazard avoidance to be prioritised over waahi tapu protections. This article examines the protections for waahi tapu from coastal hazards in the NZCPS using the principles of the Treaty of Waitangi as a lens. It argues that the NZCPS fails to take into account the principles of the Treaty regarding waahi tapu protections. To resolve this failure, it recommends amendments to the NZCPS that aim to empower Māori and provide protections for waahi tapu in a more holistic and principled way.

Terri Winder

In Cloud Ocean Water Limited v Aotearoa Water Action Incorporated [2023] NZSC 153 the Supreme Court noted that a judgment on the cultural values and tikanga effects of water bottling on the indigenous peoples of New Zealand, collectively known as Māori, was unnecessary as the consenting process had to be renewed regardless. Consequently, this article seeks to understand the cultural values and tikanga effects, as well as the cultural shortcomings in the processing of Cloud Ocean’s water-bottling application. To achieve this objective, a comprehensive literature review was conducted, focusing on the regulatory framework for freshwater in Canterbury, an analysis of water bottling commissioned by the Ministry for the Environment (MoE), Cloud Ocean’s resource consent application, the recommending report, and the various decisions, and the submission from Te Ngāi Tūāhuriri Rūnanga (the entity with customary authority over the area that the site is located within), herein referred to as Ngāi Tūāhuriri, for the case. The literature review revealed that commercial water bottling has unacceptable adverse cultural values and tikanga effects on tangata whenua — the local iwi or hapū that holds mana whenua (territorial authority) over an area. Also, that Cloud Ocean’s consenting process failed to properly assess the cultural values and tikanga effects, erroneously assuming that silence from Papatipu Rūnanga (marae- based council), herein referred to as Rūnanga, indicated no cultural concerns, and involved inadequate consultation and engagement with tangata whenua. The significance of these findings underscores the imperative for planners and the profession to improve their practices. This includes conducting thorough cultural assessments and ensuring effective consultation and engagement with tangata whenua.

Cici Davie

Sustainability certification schemes (SCS) use production standards, monitoring, certification and labelling to reward firms who comply with environmental criteria. Often private (non-state) and voluntary (non-legally binding) initiatives, SCS act as a market-based governance tool to pursue sustainable production. However, since the 1990s, a diverse and competitive market of SCS itself has emerged. This article critically examines to what extent and how SCS in New Zealand may deliver ecological sustainability in biomass supply chains. First, this article argues that private SCS should be complemented by public (state) frameworks that harmonise SCS and establish the floor level of what standards should look like and which certifiers cannot fall below. However, national initiatives are not immune to credibility concerns and the reform of SCS should go further than standardisation alone. Secondly, this article argues that public and private actors should reflect on the problem-oriented logics prioritised by SCS in the standard-setting process to determine which sustainability challenges SCS may best address amongst a growing number of mandatory regulatory measures.

Millie Macalister

The past two decades have seen rapid advancements in gene technology, particularly in the development of precision breeding techniques, including the emergence of highly precise gene-editing technologies such as CRISPR-Cas9. These new gene-editing techniques offer promising opportunities for the agricultural industry, particularly as climate change increasingly adversely impacts crop growth. Despite this technological revolution, no gene-edited organisms have been approved for release beyond strict containment in New Zealand. This article critically analyses the regulation of genetically modified organisms (GMOs), and organisms modified through gene editing in New Zealand under the primary governing piece of legislation, the Hazardous Substances and New Organisms Act 1996 (HSNO Act), as well as the potential application of the Resource Management Act 1991 (RMA). It examines New Zealand’s process-based approach to regulation in comparison with product-based regulatory models adopted internationally. This article further contemplates several environmental and ethical factors that may be relevant when considering potential regulatory change. Ultimately, it suggests that New Zealand should reform its legislative framework to better balance technological advancement with environmental protection and cultural responsibilities while ensuring that any regulatory reform appropriately incorporates both scientific evidence and commonly shared community values.

Kenneth Palmer

The Principles of the Treaty of Waitangi Bill (the Bill) was introduced into Parliament by the ACT party in late 2024 as part of a commitment under the coalition agreement establishing the government to support a first reading and referral to the Justice Committee. The agreement by the other parties, National and New Zealand First, does not extend to support of a second reading. The Bill is highly controversial due to claims by opposition parties in Parliament, and Māori, that it will undermine the rights of Māori under the Treaty of Waitangi signed in 1840, and the principles already articulated by the courts and the Waitangi Tribunal, and expressed in other legislation. This note endeavours to provide a concise temperate overview of the complex legal and historical issues which the Bill awakens.

Charlie Matthews

The Sixth National Government of Aotearoa New Zealand has committed to an ambitious three-phased work programme to replace the Resource Management Act 1991 and reform the country’s resource management system. This article explores the three phases of this work programme. It assesses how the proposals will impact on environmental and resource management, and the appropriateness of the process by which the government has embarked on these reforms.

Bella Belcher

This case note examines the landmark Supreme Court decision of Smith v Fonterra Co-operative Group Ltd. Mr Smith, elder of Ngāpuhi and Ngāti Kahu iwi, and climate change spokesperson for the Iwi Chairs Forum, first filed a claim in tort for climate change-related damage against seven New Zealand companies in 2019. Smith’s claim was struck out by the High Court (partially) and the Court of Appeal (fully) on the grounds that it was bound to fail. The Supreme Court has now reinstated Smith’s three causes of action in public nuisance, negligence, and a novel climate system damage tort. This case reveals how the lower courts had erred in their judgments by clarifying how strike-out principles should be applied in New Zealand. It also observes the opportunity for common law tort principles informed by tikanga Māori to develop in response to the polycentric issue of climate change.

Samuel Turner-O’Keeffe

This case note canvasses the Court of Appeal’s judgment in Smith v Attorney-General. That case concerned whether various novel pleadings challenging the Crown’s legislative response to climate change would be struck out, or otherwise permitted to be heard at trial. The Court’s conclusion — as detailed at length in this note — was that the relevant pleadings were to be struck out, because they either required the Court to abandon its constitutional role, represented drastic reconstructions of existing legal principles, or otherwise were plainly untenable for other reasons. However, the Court also noted that climate litigants could possibly pursue alternative, more promising ways of challenging the Crown’s response to climate change.

Caroline Foster

Alexander Zahar’s Research Handbook on the Law of the Paris Agreement, provides a comprehensive and engaging examination of the Agreement’s evolving legal, institutional, and political dimensions, bringing together scholarship on mitigation, adaptation, compliance, transparency, climate finance, litigation, carbon dioxide removal, biodiversity and social movements. Although some chapters are heavily descriptive and the editor adopts a pessimistic assessment of the Agreement’s capacity to deliver transformative climate action, the collection offers valuable and carefully researched analyses of both the strengths and limitations of the Paris framework.